February 16, 2017

The Telephone Consumer Protection Act (TCPA) can potentially affect any type of business, including healthcare entities, pharmacies, and medical device suppliers. Enacted in 1991, the TCPA restricts the making of telemarketing calls and the use of automatic telephone dialing systems (i.e. “robocalls”), artificial or prerecorded voice messages, text messages, and even covers the sending of information via facsimile.  Despite a number of rule changes and guidance documents issued by the FCC since its enactment, the TCPA continues to cause compliance difficulties for those in the healthcare industry and lawsuits based on alleged violations of the TCPA by healthcare providers are on the rise nationwide.

As the TCPA is applied to healthcare, questions of what constitutes consent to be called or contacted and the so called “emergency purpose” safe harbor are the most common issues that the courts have been called upon to interpret. In recent months, lawsuits filed in Missouri, California, and Florida have highlighted some of the issues around TCPA compliance.

In the Eastern District of Missouri, pharmacy benefit manager Medco and a specialty pharmacy placed calls to patients on issues related to prescription orders that had been placed by their patients or made calls to ensure that patients were following their prescribed treatment regimens. The court held that calls that relate to prescription refills, order scheduling, or confirmations can fall under the “emergency purpose” exception and dismissed the TCPA case against Medco and the pharmacy.

However, just a few months later in a California court, CVS was not let off the hook under similar circumstances when it placed automated calls to a customer regarding prescriptions and refills. Instead, the court rejected the notion that prescription-related calls categorically fall into the “emergency purpose” exception, and in this case noted that the patient had specifically requested that he not receive automated calls—a circumstance that did not exist in the Medco case.

In Florida, a former patient in Central Florida Regional Hospital’s (CFRH) emergency room recently filed a putative class-action suit claiming that he received 220 illegal calls to his cellphone—30 from CFRH and 190 from Transworld Systems (a debt-collection company)—over a nearly 18-month period, all in an attempt to collect $150 in unpaid bills. The plaintiff states that he did not give either company his cell phone number, or consent to the calls.

Finally, and in what may portend a new trend in TCPA cases, a physician filed litigation in a Florida district court against a number of both medical device and pharmaceutical companies (along with unnamed “John Doe” co-defendants).  In this healthcare provider versus medical device/pharmaceutical provider situation, the physician claimed that he was the recipient of streams of unsolicited facsimile transmissions from the defendants, a practice that is a violation of TCPA rules. Both cases were settled for undisclosed amounts.

Penalties for violations of the TCPA can add up—it provides for a private right of action to affected parties, including for injunctive relief, actual monetary loss, or a statutory penalty of $500 for each violation (and up to $1500 for knowing or willful violations). The FTCFCC and state attorneys general, as well as other enforcement agencies, can also enforce the TCPA and impose civil monetary penalties for violations.

The legal landscape around the TCPA continues to evolve, and assessing your organization’s exposure under it can involve many factors. The FisherBroyles Pharmacy and Health Care Law team is available to assist you and answer any questions you may have regarding TCPA compliance. We offer complete compliance reviews for pharmacies and healthcare entities across the U.S. Please contact any of the following attorneys for assistance:

Amy Butler

Anthony Calamunci

Brian E. Dickerson

Nicole Hughes Waid

Katy Wane